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April 9, 2026 Get Citation Alerts Download PDF Add Note

State v. Hutchings

Oregon Supreme Court

• Citations: 375 Or. 132
• Docket Number: S072024
• Judges: Bushong

• Disposition: The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

• Opinion

• Authorities (25)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.1K)

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Disposition

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

Combined Opinion

132 April 9, 2026 No. 17

IN THE SUPREME COURT OF THE
STATE OF OREGON

STATE OF OREGON,
Respondent on Review,
v.
JOSHUA DANIEL HUTCHINGS,
Petitioner on Review.
(CC 20CR07446) (CA A179185) (SC S072024)

En Banc
On review from the Court of Appeals.*
Argued and submitted January 27, 2026.
Stacy Du Clos, Deputy Public Defender, Oregon Public
Defense Commission, Salem, argued the cause and filed the
briefs for petitioner on review. Also on the briefs was Ernest
G. Lannet, Chief Defender, Criminal Appellate Section.
Ryan Kahn, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent on review. Also
on the brief were Dan Rayfield, Attorney General, and Paul
L. Smith, Interim Solicitor General.
BUSHONG, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.

---

• Appeal from Multnomah County Circuit Court, Heidi H. Moawad, Judge. 340 Or App 208, 570 P3d 267 (2025). Cite as 375 Or 132 (2026) 133 134 State v. Hutchings

BUSHONG, J.
In this criminal case, we are asked to decide
whether the prosecutor’s elicitation of vouching testimony
without objection warrants reversal of defendant’s convic-
tion for unlawful use of a weapon. The Court of Appeals
affirmed the conviction, concluding that the admission
of the testimony was not grounds for reversal as a “plain
error,” because it was plausible that defendant had, for stra-
tegic reasons, chosen not to object to that testimony. State v.
Hutchings, 340 Or App 208, 570 P3d 267 (2025). We allowed
review on defendant’s petition to address how the possibility
that counsel had strategic reasons for not objecting to inad-
missible vouching testimony affects the analysis on plain-
error review. Assuming without deciding that the testimony
here violated the categorical prohibition on vouching, we
conclude that the error was plain, but the Court of Appeals
did not abuse its discretion in declining to reverse defen-
dant’s conviction based on that error.
In general, an appellate court “may, in its discre-
tion, consider a plain error,” that is, an error that was not
preserved for appellate review by a timely objection. ORAP
5.45(1). An error constitutes a plain error if it is (1) an
error of law, (2) obvious and not reasonably in dispute, and
(3) apparent on the record. Ailes v. Portland Meadows, Inc.,
312 Or 376, 381-82, 823 P2d 956 (1991) (citing State v.
Brown, 310 Or 347, 355-56, 800 P2d 259 (1990)). But, as we
have explained, determining that an error is plain “does not
mean that [the] defendant is entitled to a reversal.” State v.
Wiltse, 373 Or 1, 4, 559 P3d 380 (2024).1 Appellate courts
have discretion to reverse a conviction based on a plain error
in some cases. Whether an appellate court should exercise
that discretion depends on other considerations, “including,

1
In Wiltse, we also stated that a plain error “is not necessarily a revers-
ible error.” 343 Or at 4-5. We used the word “reversible” in that context to mean
“eligible for reversal.” Under Article VII (Amended), section 3, of the Oregon
Constitution, “an appellate court may not reverse a criminal defendant’s convic-
tion based on an error—whether preserved or unpreserved—that is harmless.”
State v. Ortiz, 372 Or 658, 671, 554 P3d 796 (2024). Thus, a plain error does not
provide legal grounds for reversal—that is, it is not legally reversible—if it is
harmless under the constitutional standard. An error is considered harmless for
purposes of that standard if “there is little likelihood that the error affected the
jury’s verdict.” Id. at 671 (citing State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003)).
Cite as 375 Or 132 (2026) 135

but not limited to, the considerations that this court identi-
fied in Ailes.” Id.
The dispute in this case centers on the possibility
that defendant, consistent with his trial strategy, made a
“strategic choice” not to object to vouching testimony elicited
by the prosecutor. We have indicated in another context that
the possibility that a defendant “made a strategic choice not
to object” is a factor that is relevant to the analysis. Wiltse,
373 Or at 11 (citing State v. Fults, 343 Or 515, 523, 173 P3d
822 (2007)). How that possibility affects the analysis on
plain-error review is the main issue in dispute here.
The state contends—and the Court of Appeals con-
cluded—that the possibility that defendant made a strategic
choice not to object to the vouching testimony means that
the error was not “plain,” and, therefore, an appellate court
may not consider it. Defendant contends that the possibility
that he made a strategic choice not to object is a factor to
consider in determining whether to reverse his conviction
based on the error, but it does not determine whether the
error is reviewable as plain error. Defendant argues that
allowing vouching testimony was plain error, because the
prosecutor’s elicitation of that testimony was an obvious
error of law that is apparent from the record and not rea-
sonably in dispute. Defendant further contends that his
conviction should be reversed based on that error, because
the competing interests of the parties and the gravity of the
error favor a reversal.
As we will explain, we agree with defendant that
the elicitation of vouching testimony is generally reviewable
on appeal as plain error even if the defendant may have
made a strategic choice not to object to that testimony. We
further conclude, however, that the Court of Appeals did not
abuse its discretion in declining to reverse defendant’s con-
viction based on that error.
HISTORICAL AND PROCEDURAL FACTS
The facts relevant to our review are not in dispute
and are taken from the record and the Court of Appeals’
decision. Defendant lived in the same apartment complex
as the alleged victim, KC, though they did not know each
136 State v. Hutchings

other. On the day in question, defendant and KC got into an
argument. Defendant had parked his car in KC’s assigned
parking spot, and KC had parked his vehicle in a way that
blocked defendant’s car. Defendant confronted KC about
blocking his car, resulting in an argument. According to KC,
defendant pulled out a gun during the argument, pointed it
at KC, and threatened to shoot him. Defendant eventually
returned to his apartment, and KC called the police.
Gresham Police Officer Zachary Smelser responded,
interviewed KC, and then met with defendant outside his
apartment. Smelser arrested defendant and informed him
of his Miranda rights, and defendant agreed to talk to
Smelser. During that discussion, defendant acknowledged
that he had gotten into an argument with KC but denied
brandishing a gun. Defendant acknowledged that he owned
a Glock-type gun that matched the description that KC had
offered, but defendant claimed that his guns were locked
in a safe in his apartment at the time of the argument.
Later, police executed a search warrant and found a gun in
defendant’s safe that matched the description that KC had
offered.
Defendant was indicted and went to trial on a
charge of unlawful use of a weapon involving the threat-
ened use of a firearm. Smelser testified at trial about his
discussions with KC and defendant. On cross-examination,
Smelser acknowledged that he did not have any kind of “spe-
cial training” to help him judge someone’s credibility “when
comparing stories.” Defense counsel asked Smelser if he had
a “method” for determining who was telling the truth in a
“he said/she said” situation. Smelser responded that he did
not have a particular “method” but would make that deter-
mination on a “case by case” basis. Defense counsel also
asked Smelser if he had observed differences in demeanor
between two people who had been involved in a dispute.
Smelser responded that, in that situation, the “accuser” and
the person being accused would “sometimes” display simi-
lar types of demeanor, and that any difference in demeanor
“varies case by case.” Smelser indicated that, in this case,
KC appeared to be “shaken up” and “distressed,” and that
defendant seemed “curious” and “concerned.”
Cite as 375 Or 132 (2026) 137

On redirect examination, the prosecutor asked
Smelser, “And in fact, in response to questions asked by
[defense counsel], did you come to a conclusion about whether
you thought [defendant] was telling the truth?” Smelser
responded, “I did.” The prosecutor then asked, “And what
was that conclusion?” Smelser responded, “I felt that he was
not truthful.” Defendant did not object to the question or
move to strike the response.
A jury convicted defendant of unlawful use of a
weapon, and the court sentenced him to 36 months’ proba-
tion. Defendant appealed, assigning error to the trial court’s
failure to strike, sua sponte, Smelser’s testimony that defen-
dant “was not truthful.” Defendant contended that the testi-
mony was “plainly vouching” and that the trial court’s fail-
ure to strike the testimony was plain error that warranted
reversal.
The Court of Appeals affirmed the conviction, con-
cluding that the trial court had not plainly erred in failing
to strike Smelser’s testimony. The court explained, applying
its own precedents, that failing to strike vouching evidence
is not plain error where the record supports a plausible
inference that the defendant chose not to object for strate-
gic reasons. Hutchings, 340 Or App at 210 -11 (citing State v.
Wilson, 266 Or App 481, 492, 337 P3d 990 (2014), rev den,
356 Or 837 (2015), and State v. Macias, 282 Or App 473, 481,
386 P3d 186 (2016)). The court further explained that part
of defendant’s trial strategy was to “cast doubt” on the police
investigation, and the vouching testimony was consistent
with that strategy because it suggested that Smelser had
“disbelieved defendant from the start,” causing the police “to
conduct an inadequate investigation.” Id. at 212.
In a footnote, the court indicated that, even if the
admission of vouching testimony amounted to plain error,
the court would not exercise its discretion to reverse the con-
viction based on that error. Id. at 212 n 2. The court again
noted the plausible inference that defendant had a strategic
reason not to object to the testimony. In addition, in consid-
ering the gravity of the error, the court stated that “ ‘this is
not the kind of expert vouching testimony that most often
has prompted [the court] to reverse a criminal conviction[.]’ ”
138 State v. Hutchings

Id. (quoting State v. Inman, 275 Or App 920, 932, 366 P3d
721 (2015), rev den, 359 Or 525 (2016)). The court explained
that Smelser did not testify “as an expert in identifying
untruthfulness,” and the fact that he was a law-enforcement
officer, standing alone, “would not necessarily have led the
jury to believe that he had special insight into defendant’s
veracity.” Id. In addition, in assessing whether the trial
court had been given an opportunity to correct the error, the
court noted that, if defendant had objected to the testimony,
“the trial court could have easily cured any error by striking
the testimony and instructing the jury to disregard it.” Id.
We allowed review on defendant’s petition to clarify
how the possibility that defendant had a strategic reason for
failing to object to vouching testimony affects the analysis
on plain-error review.
ANALYSIS
The issues on review are (1) whether the possibil-
ity that defendant may have made a strategic choice not to
object to vouching testimony was properly a consideration
for the court in determining whether defendant had identi-
fied a plain error, and (2) if the admission of that testimony
was reviewable as a plain error, whether defendant’s convic-
tion should be reversed based on that error. We begin with
the principles of preservation and plain-error review that
we recently summarized in Wiltse.
The general rule is that, before an appellate court
may address whether a trial court committed an error, “ ‘the
adversely affected party must have preserved the alleged
error in the trial court[.]’ ” Wiltse, 373 Or at 10 (quoting Ailes,
312 Or at 380). An exception to this general rule is that an
appellate court may consider unpreserved errors “if they con-
stitute ‘plain error.’ ” Id.; see also Peeples v. Lampert, 345 Or
209, 219, 191 P3d 637 (2008) (describing plain-error review
as “[t]he principal exception to preservation requirements”).
The Oregon Evidence Code specifically requires a “timely
objection or motion to strike” improperly admitted evidence.
OEC 103(1)(a). That requirement is subject to an exception
for “plain errors affecting substantial rights although they
were not brought to the attention of the court.” OEC 103(4).
Cite as 375 Or 132 (2026) 139

Appellate courts addressing a claimed plain error
“employ a two-step analysis.” Wiltse, 373 Or at 10. The first
step is to determine “if the error constitutes a plain error.”
Id. As noted, an error is “plain” if it is (1) an error of law,
(2) obvious and not reasonably in dispute, and (3) apparent
on the record. Id. That third requirement means that the
appellate court “must not need to go outside the record to
identify the error or choose between competing inferences[.]”
Id. Whether an error constitutes a plain error is a question
of law, which this court reviews for errors of law. Id. If an
error constitutes a plain error, then, at the second step of the
analysis, “an appellate court determines whether to exercise
its discretion to reverse based on the error.” Id.
This court has identified a nonexclusive list of fac-
tors that may help an appellate court determine—at step
two of the analysis—whether to exercise its discretion to
reverse based on a plain error. Specifically, the court may
consider
“ ‘the competing interests of the parties; the nature of the
case; the gravity of the error; the ends of justice in the par-
ticular case; how the error came to the court’s attention;
and whether the policies behind the general rule requiring
preservation of error have been served in the case another
way, i.e., whether the trial court was, in some manner, pre-
sented with both sides of the issue and given an opportu-
nity to correct any error.’ ”
Id. at 11 (quoting Ailes, 312 Or at 382 n 6). In Wiltse, we
indicated that additional factors “can include whether the
party alleging a plain error encouraged the error or made a
strategic choice not to object to it, and whether the opposing
party played a role in causing the error.” Id. (internal cita-
tions omitted).
Defendant notes that Wiltse listed a “strategic
choice not to object” as an additional factor that the court
can address at step two of the analysis. Defendant argues
from that observation that whether he had made a strate-
gic choice not to object to the admission of Smelser’s testi-
mony is only relevant in determining, at step two, whether
defendant’s conviction should be reversed based on the error
in admitting that testimony. The state responds that the
140 State v. Hutchings

possibility that defendant made a strategic choice not to
object means that the court would have to “choose between
competing inferences,” which means—at step one of the
analysis—that the error is not a plain error at all.
We have addressed the “strategic choice” issue in
four previous plain-error cases, two involving claims of
erroneous sentences, one involving errors in the prosecu-
tor’s closing argument, and one involving an erroneous jury
instruction. Although those cases are informative, none of
them clearly decided whether a defendant’s strategic choice
not to object to the admission of evidence is analyzed at step
one or step two of our framework for addressing a claim of
plain error. The “strategic choice” issue traces back to our
decision in State v. Gornick, 340 Or 160, 130 P3d 780 (2006),
so we will begin with that case and discuss it in some detail.
In Gornick, we considered “whether the Court of
Appeals improperly considered, as plain error, an unpre-
served claim of sentencing error[.]” Id. at 162. After the
defendant had pleaded guilty to a charge of third-degree
assault, the trial court found certain aggravating facts and
imposed an upward departure sentence. Id. The defendant
did not object or contend that he was entitled to have a jury
determine whether the state had proved the aggravating
facts beyond a reasonable doubt. Id. On appeal, the defen-
dant argued for the first time that a jury determination of
aggravating facts was required by the Sixth Amendment to
the United States Constitution, as interpreted in Blakely v.
Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403
(2004), and Apprendi v. New Jersey, 530 US 466, 120 S Ct
2348, 147 L Ed 2d 425 (2000). Id. The Court of Appeals con-
cluded that the defendant’s claim was reviewable as plain
error, exercised its discretion to address that error, and
vacated the defendant’s sentence. Id.
We allowed the state’s petition for review and
reversed. We explained that “a trial court does not commit
legal error by finding aggravating facts if the defendant
chooses not to exercise his rights under Blakely.” Gornick,
340 Or at 168. Thus, the “mere fact that a judge, rather
than a jury, decides the facts relevant to sentencing does
not demonstrate that any error occurred[,]” because “[b]oth
Cite as 375 Or 132 (2026) 141

courses of proceeding are constitutionally permissible.” Id.
The defendant in Gornick had entered a guilty plea pursu-
ant to a plea agreement that “clearly stated that he was giv-
ing up his jury trial rights” and consented to “having the
trial court impose a sentence which the court found appropri-
ate[.]” Id. at 169 (emphasis added; internal quotation marks
and brackets omitted). Those circumstances left us “with a
single event, the trial court finding the aggravating facts,
but multiple competing inferences that can be drawn from
that event.”2 Id. One possible inference was that “the trial
court erred by finding the aggravating facts in violation of
the Sixth Amendment.” Id. Another possible inference was
that “the defendant chose, for one of many possible reasons,
not to have a jury find the aggravating facts”—as his plea
agreement suggested he had. Id. at 170. If that were the
case, we explained, then “the trial court did not err.” Id. And
we noted a “third possible inference [was] that [the] defen-
dant did not want the trial court to find the facts but chose
not to object for strategic purposes.” Id. (emphasis added).
Under those circumstances, we explained, the
record did “not clearly show that the trial court erred, only
that it may have erred.” Id. (emphasis added). Thus, we con-
cluded that “the first requirement of the plain error analysis
[was] not satisfied[,]” because “we would be forced to choose
between competing inferences respecting the trial court’s
finding of the aggravating facts[.]” Id.
We also addressed how a defendant’s “strategic
choice” not to object to a sentence imposed by the trial court
affected the appellate court’s analysis on plain-error review
in State v. Fults, 343 Or 515, 173 P3d 822 (2007). There, the
trial court imposed a 36-month term of supervised proba-
tion on a charge of manufacturing a controlled substance
(MCS) even though the presumptive sentence under the
sentencing guidelines was 24 months’ supervision. As we
explained, the trial court had imposed that 36-month term
of supervised probation on the MCS charge “to match the
guidelines sentence” that applied “to one of [the] defendant’s
2
We referred to the “competing inferences” that could be drawn because, for
an error to be “plain” at the first step of the plain-error analysis, the court must
not need to “go outside the record to identify the error or choose between compet-
ing inferences[.]” Gornick, 340 Or at 166.
142 State v. Hutchings

other convictions[.]” Id. at 517. The defendant’s lawyer “affir-
matively endorsed that choice[.]” Id. And, as we noted, there
was “still more to the story.” Id. at 518. Because of the defen-
dant’s criminal record, an extensive jail sentence was “a
real possibility.” Id. At sentencing, the defendant’s lawyer
urged the court to impose “as little jail time as possible” so
that the defendant could begin pursuing vocational reha-
bilitation. Id. On appeal, the defendant contended for the
first time that the 36-month term of probation on the MCS
charge was erroneous and argued for reversal as plain error.
Id. The Court of Appeals agreed and vacated the sentence.
The state sought review in this court, arguing that
the defendant’s “express acceptance” of the sentence pre-
cluded appellate review, that the error was not “apparent
on the face of the record,” and that the Court of Appeals’
reason for exercising its discretion to reverse based on the
unpreserved error “was an inappropriate one.” Id. at 519
(internal quotation marks omitted). The state urged this
court to “start with its last objection” regarding the Court
of Appeals’ exercise of discretion. Id. We agreed to do so,
because we believed that the Court of Appeals’ decision indi-
cated that that court may have “misapprehend[ed] its role
in cases in which it is asked to exercise its discretion under
ORAP 5.45(1) to consider unpreserved error.” Id.
Ultimately, we reversed the Court of Appeals’ deci-
sion in Fults and remanded the case for further proceedings.
We explained that “a Gornick-style inquiry into whether the
fact that defendant may have had a strategic reason not to
object means that there was no error at all would be less help-
ful * * * than simply proceeding directly” to reviewing the
Court of Appeals’ consideration of what it believed to have
been a “plain” error. Id. at 520. We thus assumed—for pur-
poses of that case—that there was a plain error and turned
to reviewing the Court of Appeals’ “decision to consider the
alleged error.” Id. In that context, we explained that “the
Court of Appeals should take into consideration any strate-
gic purpose that [the] defendant may have had in not object-
ing to the trial court’s course of action.” Id. We concluded
that the Court of Appeals’ decision to consider the defen-
dant’s unpreserved claim of error was an abuse of discretion
Cite as 375 Or 132 (2026) 143

because the court offered only one reason for doing so: The
state had “no valid interest in requiring [the] defendant to
serve an unlawful sentence.” Id. at 523 (emphasis omitted).
We explained that “other factors also must be considered
and may outweigh that one.” Id. Among those “other factors”
was “the possibility that [the] defendant made a strategic
choice not to object to the sentence[.]” Id.
More recently, we addressed the “strategic choice”
issue in a different context in State v. Chitwood, 370 Or 305,
518 P3d 903 (2022). The issue in Chitwood was whether two
“highly improper” statements made by the prosecutor during
the rebuttal closing argument constituted plain error, and if
so, whether they were so egregious that they deprived the
defendant of a fair trial. We concluded that the prosecutor’s
statements constituted plain error without addressing at
step one in the analysis whether the defendant may have
had strategic reasons for not objecting to those statements
at trial. At step two of the analysis, the state argued that the
error did not warrant reversal, because “there was ‘a possi-
bility that [the] defendant made a strategic choice’ not to
request a mistrial or a curative instruction[,]” which would
make it “unfair to the state” for the court to exercise its
discretion to reverse based on that error. Id. at 322-23. We
rejected that argument, noting “the prosecutor’s role” in cre-
ating the defendant’s “predicament” and the fact that “the
record [did] not show that defendant encouraged or invited
the prosecutor’s conduct[.]” Id. at 326. The dissenting opin-
ion noted that our “cases have left unresolved the question
whether a party’s strategic choice not to object is relevant to
the existence of plain error, or relevant only to the discretion-
ary choice to correct such an error, or both.” Id. at 334 n 2
(Garrett, J., dissenting) (emphasis in original).
Finally, we addressed the “strategic choice” issue
again in a different context in Wiltse, 373 Or 1. The defen-
dant in Wiltse argued for the first time on appeal that the
trial court had plainly erred in giving a jury instruction
that amounted to a comment on the evidence. The Court of
Appeals agreed with the defendant that the instruction was
a comment on the evidence that was prohibited by ORCP 59
E, but it held that giving the instruction was not plain error,
144 State v. Hutchings

because “it was possible that [the] defendant had agreed to
the instruction or had made a strategic choice not to object
to it and, therefore, the alleged error * * * did not appear on
the record.” Id. at 3-4. We reversed. We explained that the
premise of the Court of Appeals’ decision was that “it is not
error for a trial court to give an instruction that comments
on the evidence if the parties agree to the instruction or
make a strategic choice not to object to it.” Id. at 4. But, we
concluded, “that premise is incorrect.” Id.
We explained that, under our case law, whether a
jury instruction “violates the rules that govern jury instruc-
tions * * * is a question of law that can be determined by
examining the instruction itself[.]” Id. at 9-10. If the instruc-
tion violates those rules, then “giving it was error and the
error [was] apparent on the record.” Id. at 10. We further
explained that ORCP 59 E’s “prohibition against comments
on the evidence protects the jury’s role as the factfinder, and
parties cannot agree to allow a trial court to interfere with
that role.” Id. at 18. If a trial court gives an instruction that
violates ORCP 59 E, “the trial court has erred and the error
is apparent on the record.” Id. “Whether the parties agreed
to the instruction or made [a] strategic choice not to object
to it does not alter the fact that, by giving the instruction,
the trial court violated its independent duty under ORCP
59 E.” Id. But, we explained, those possibilities “can affect
whether an appellate court exercises its discretion to rem-
edy an error.” Id. (emphasis in original).
In summary, we have addressed the “strategic
choice” issue in two sentencing cases (Gornick and Fults); one
closing argument case (Chitwood); and one jury instruction
case (Wiltse). In Gornick, we considered whether the defen-
dant had made a strategic choice not to object to the sentence
at step one of the analysis in determining whether the error
was plain. In Fults, we assumed that the sentencing error
was plain and considered—at step two of the analysis—
whether the defendant had made a strategic choice not to
object to the sentence. In Chitwood, we addressed the strate-
gic choice issue at step two of the analysis without deciding
whether the issue was relevant in determining the existence
of plain error at step one. And in Wiltse, we determined that
Cite as 375 Or 132 (2026) 145

whether the defendant had made a strategic choice not to
object to a jury instruction was a factor to be considered at
step two of the analysis in determining whether a conviction
should be reversed based on that plain error.
None of those cases resolved the issue presented
here, which involves the admission of vouching evidence
without objection, but the analysis we applied in those other
contexts is informative. In the context of a sentencing error,
Gornick indicated that a strategic choice not to object is part
of the analysis, at step one, if one of the permissible infer-
ences that can be made from that choice is that “the trial
court did not err.” 340 Or at 170. Wiltse applied that princi-
ple in the context of an instructional error, concluding that
the error was “plain,” because a defendant’s strategic choice
not to object would not “alter the fact that, by giving the
instruction, the trial court violated its independent duty” to
avoid commenting on the evidence. 373 Or at 18.
Under OEC 103(1)(a), a trial court ruling admit-
ting evidence generally is not considered an error on appeal
absent a timely objection or motion to strike. It follows that
trial courts ordinarily do not have any independent duty to
exclude inadmissible evidence, but only a duty to correctly
rule on a timely objection or motion to strike. That could ren-
der such circumstances less like Wiltse—where the court’s
duty to act was independent of any decision by the parties—
and more like Gornick, where a party’s decision could mean
that the court had not erred at all. But the rule against
vouching is not based on OEC 103. The “vouching rule” is a
judicially created evidentiary rule that is not codified in the
Oregon Evidence Code. State v. Chandler, 360 Or 323, 331,
380 P3d 932 (2016). As a result, “the exact contours of the
rule may be difficult to trace.” Id.
In general, impermissible vouching occurs when
a witness makes “[a] direct comment on the credibility of
a witness or a statement that is ‘tantamount’ to stating
that another witness” is truthful or untruthful. State v.
Beauvais, 357 Or 524, 543, 354 P3d 680 (2015).3 Such testi-
3
Beauvais addressed testimony that a witness had been truthful, but, as we
have noted, the rule against vouching applies “both to comments that bolster and
to comments that undermine a witness’s credibility.” Chandler, 360 Or at 331 n 3.
146 State v. Hutchings

mony is excluded to ensure that “ ‘the jury’s role in assess-
ing witness credibility is not usurped by another witness’s
opinion testimony.’ ” State v. Black, 364 Or 579, 585, 437 P3d
1121 (2019) (quoting Chandler, 360 Or at 330); see also State
v. Middleton, 294 Or 427, 438, 657 P2d 1215 (1983) (“We
expressly hold that in Oregon a witness, expert or other-
wise, may not give an opinion on whether he believes a wit-
ness is telling the truth.”). In that sense, a trial court’s obli-
gation to address vouching evidence is similar to the court’s
independent obligation to correctly instruct the jury on the
law that we addressed in Wiltse.
We have indicated, without expressly holding, that
trial courts may have an obligation to intervene sua sponte
with respect to evidence that violates the rule against
vouching. See State v. Sperou, 365 Or 121, 140, 442 P3d
581 (2019) (holding that the trial court’s error in denying a
defendant’s pretrial motion to exclude vouching testimony
was not a harmless error, and noting that, “[i]n general, wit-
ness vouching in Oregon is considered prejudicial, so much
so in fact that it sometimes requires intervention by the
trial court even when parties fail to object to it”); State v.
Milbradt, 305 Or 621, 630, 756 P2d 620 (1988) (suggesting
that, if a question seeks to elicit vouching testimony, “the
trial judge, sua sponte, should summarily cut off the inquiry
before a jury is contaminated by it”).
Defendant contends that the testimony at issue vio-
lates the “categorical prohibition” against vouching evidence
that we have previously recognized, and, therefore, that this
case is more like Wiltse, because any strategic decision by
defendant was immaterial to whether the trial court plainly
erred. The state contends in this court that the testimony
here does not violate that categorical prohibition, because it
could have been offered for a purpose other than the truth of
the credibility opinion that it expresses;4 the state further con-
tends that, even if the testimony was impermissible vouching
evidence, it was not an abuse of discretion to decline to reverse
defendant’s conviction based on its erroneous admission.
We need not address the state’s first argument
because we agree with its second. Assuming without
4
The state did not make that argument in the Court of Appeals.
Cite as 375 Or 132 (2026) 147

deciding that the testimony was impermissible vouching, we
conclude that the error affects, at step two of the analysis,
whether an appellate court should, in its discretion, reverse
defendant’s conviction on plain-error review. And, as we will
explain, we conclude in this case that the Court of Appeals
did not abuse its discretion in declining to reverse defen-
dant’s conviction.
If the testimony was categorically prohibited as
vouching, whether the trial court erred at all in receiving it
would not depend on whether defendant might have had a
strategic reason for not objecting to the testimony. In that
regard, impermissible vouching evidence is more like the
instructional error in Wiltse than the sentencing error in
Gornick. Even if the record revealed that defendant chose,
for strategic reasons, not to object to vouching testimony,
if the testimony is categorically prohibited as vouching, it
would still be error to allow it, though the error might not
be grounds for reversal.5 We conclude in this context that
the possibility that defendant did not object to vouching evi-
dence for strategic reasons is immaterial to the appellate
court’s inquiry at step one of the analysis. In other words, if
there was an error in admitting testimony that is categor-
ically prohibited as vouching, the error was plain regard-
less of whether defendant chose, for strategic reasons, not to
object to that testimony.
The only remaining issue is whether defendant’s
conviction should be reversed based on that plain error. As
noted, that is a discretionary decision that involves consid-
eration of the factors listed in Ailes and other relevant fac-
tors, including the possibility that defendant may not have
objected to the evidence for strategic reasons. Wiltse, 373
5
For example, if the trial court had excused the jury after the prosecutor’s
question, inquired about defendant’s failure to object, and defense counsel had
responded on the record that the defense chose not to object, because the testi-
mony was consistent with defendant’s theory of the case and defendant wanted
the jury to hear it, then we would have a clear record that defendant’s failure to
object was for strategic reasons. Because the prohibition on vouching evidence is
categorical where the evidence is offered for the truth of the opinion testimony, a
defendant’s choice not to object to vouching testimony offered for its truth would
not make the testimony admissible, but it might very well preclude reversal
on appeal. See State v. Serrano, 355 Or 172, 188, 324 P3d 1274 (2014) (stating
that this court “has consistently declined to review plain error” that had been
“encouraged” by the party seeking review).
148 State v. Hutchings

Or at 11 (quoting factors listed in Ailes, 312 Or at 382 n 6).
Defendant contends that this court should undertake that
discretionary analysis. We decline to do so.
In State v. Vanornum, 354 Or 614, 631, 317 P3d 889
(2013), we indicated that this court “could undertake” the
“discretionary assessment” of whether a plain error war-
rants reversal, but we declined to do so in that case. In gen-
eral, discretion is the authority “to choose among several
legally correct outcomes.” State v. Rogers, 330 Or 282, 312,
4 P3d 1261 (2000). A decision that is “within the range of
legally correct discretionary choices and produced a permis-
sible, legally correct outcome,” is not an abuse of discretion.
Id.
In Vanornum, we observed that “[t]he nature of dis-
cretion is that it is best exercised by the entity principally
charged with its exercise.” 354 Or at 631. Thus, we concluded
on plain-error review that the Court of Appeals is better
situated to make that discretionary determination in the
first instance, because it “is the error-correcting tribunal to
which claims of error and plain error may be presented as a
matter of right.” Id. We adhere to that approach in this case
and decline to undertake that discretionary assessment in
the first instance.
Defendant further contends that, if we do not under-
take that assessment, then we should remand to the Court
of Appeals so that it could determine whether to exercise
its discretion to reverse defendant’s conviction.6 We decline
to do that because the Court of Appeals has already stated
how it would exercise its discretion and why. Hutchings, 340
Or App at 212 n 2.7 We decline to remand to the Court of
6
Defendant contends that that the Court of Appeals “never exercised discre-
tion,” because it concluded that there was not plain error, and that, to the extent
that the Court of Appeals explained in a footnote that it would not exercise dis-
cretion to reverse even if the error was plain, the court had “balanced the parties’
contribution to the error incorrectly.”
7
In stating that it would decline to exercise its discretion to reverse defen-
dant’s conviction, the Court of Appeals expressly addressed two factors listed in
Ailes—the “nature of the case” and the “gravity of the error.” Hutchings, 340 Or
App at 212 n 2. The court also noted that the record “supports a plausible infer-
ence” that defendant had a strategic reason not to object to the testimony. Id.
Although that factor was not listed in Ailes, we concluded in Wiltse that “whether
the party alleging a plain error encouraged the error or made a strategic choice
Cite as 375 Or 132 (2026) 149

Appeals so that it can repeat that statement. Instead, we
review the Court of Appeals’ decision for an abuse of dis-
cretion. See Gornick, 340 Or at 167 (“[T]his court inquires
whether the Court of Appeals abused its discretion in decid-
ing to consider the error under the second step in the plain
error analysis.”).
The Court of Appeals did not abuse its discretion
here. It stated that it must exercise the “utmost caution”
in deciding whether to reverse defendant’s conviction on
plain-error review. Id. We have explained that the decision
to reverse based on a plain error must be made “with the
‘utmost caution’ because such review undercuts the policies
served by the preservation doctrine.” Vanornum, 354 Or
at 630 -31 (quoting Ailes, 312 Or at 382). As a result, “it is
only in ‘rare and exceptional cases’ that an appellate court
should reverse based on an error that had not been raised
in the trial court.” State v. Ortiz, 372 Or 658, 666, 554 P3d
796 (2024) (quoting Gornick, 340 Or at 166, and Hotelling v.
Walker, 174 Or 381, 385-86, 148 P2d 933 (1944)).
The Court of Appeals, exercising the appropriate
“utmost caution,” did not see this as one of the “rare and
exceptional cases” that justifies reversing a conviction based
on an error that had not been raised in the trial court. That
was within the range of legally correct choices available to
that court, and it produced a permissible, legally correct
outcome. The court did not abuse its discretion in reaching
that conclusion.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.

not to object to it” can be an “additional factor” that the court may consider at
step two of the analysis. Wiltse, 373 Or at 11. Finally, the court pointed out in
assessing another factor listed in Ailes—whether the trial court had been given
an opportunity to correct the error—that, if defendant had objected to that testi-
mony, the trial court likely would have sustained the objection, stricken the tes-
timony, and instructed the jury to disregard it. Hutchings, 340 Or App at 212 n 2.